JUDGMENT B.D. Agrawal, J. - The Basti Sugar Mills Co. Ltd., the petitioner, owns a sugar factory in district Basti situate outside the municipal limits. The company has sugarcane purchase centres at various places. The sugarcane purchased by it at some of these centres has to pass on trucks through the municipal limits of district Basti. In the exercise of powers under S. 128(1) (vii), U.P. Municipalities Act, 1916, the Municipal Board, Basti, has framed "Nagarpalika Basti, Janpad Basti, Garion Par Pathkar Niyamawali, 1975". Under these Rules, the Municipal Board, Basti imposes Pathkar (Toll) upon the petitioner in respect of trucks laden with sugarcane passing through the municipal limits. Aggrieved against the imposition of this tax, the petitioner has moved this petition under Article 226 of the Constitution for writ of mandamus directing the Municipal Board, Basti, not to impose toll on the vehicles carrying sugarcane owned by the petitioner and also asking for the refund of Rs. 49,700 realised from the petitioner as toll. 2. Rule 2(5), Nagarpalika Basti, Janapad Basti Garion Par Pathkar Niyamavali, 1975, defines 'vehicle' as including inter alia a truck or tractor trolley laden with goods. The charging provision is contained in R. 3 which says that the tax shall be payable at the rate specified in R. 4 upon the entry within the municipal limits and that a vehicle laden with goods shall not enter the municipal limits until the toll has been paid. The rates are specified in R. 4. According to R. 9, the toll shall not be payable in respect of laden vehicles reentering the municipal limits after having gone out, provided the transit pass is obtained. 3. Section 128(1)(vii), U.P. Municipalities Act, 1916, empowers the Municipal Board to impose: "a toll on vehicles and other conveyances, animals and laden coolies entering the municipality-." 4. Clause (viii) relating to octroi empowers the Municipal Board to impose: "an octroi on goods or animals brought within the municipality for consumption, use or sale therein." 5. Clause (xiii) pertaining to terminal tax enables the Board to impose: "a tax on goods imported into, or exported from any municipality on which an octroi was in force on the 11th day of July, 1917, or with the previous sanction of the Central Government, any other municipality." 6. Clause (xiii) pertaining to terminal tax enables the Board to impose: "a tax on goods imported into, or exported from any municipality on which an octroi was in force on the 11th day of July, 1917, or with the previous sanction of the Central Government, any other municipality." 6. Sri R. S. Dhavan, learned counsel for the petitioner, contends that the imposition of the tax in the instant case being in respect of vehicles laden with goods, is to be deemed as a tax upon goods which could be imposed only as octroi and, because the incidence of the tax is not specified as consumption, use or sale of the goods, the imposition is not covered even under the caption of octroi. The submission of the learned counsel is that the levy is a camouflage intended to get over the ordinary incidents of octroi. We have carefully examined the argument, but do not find merit in it. It may not be doubted that in the instant case the imposition impugned is not that of octroi. For octroi, as is also evident from cl. (viii) of S. 128(1), the incidence has necessarily to be the bringing of goods within the municipality for consumption, use or sale therein (see Burmah Shell Oil Storage and Distribution Co. Ltd. v. Belgaum Municipality, AIR 1963 SC 906 and Jothi Timber Mart v. Corporation of Calicut, AIR 1970 SC 264 ). There is no such element in the impugned imposition, the Niyamavali, 1975 under which the imposition has been made by the Municipal Board, Basti is drawn expressly and exclusively under cl. (vii) of S. 128(1) that concerns the imposition of toll. The word laden, appearing in cl. (vii) qualifies the expression 'coolies' and not 'vehicles and other conveyances, animals' meaning thereby clearly that for purposes of this clause the vehicles and other conveyances or animals may be laden or unladen. It is of no consequence to attract cl. (vii) whether the vehicles entering the municipality are laden or unladen. In either event the incidence for the imposition of toll is the passage over or for using road. bridge, ferry or the like. 7. It is of no consequence to attract cl. (vii) whether the vehicles entering the municipality are laden or unladen. In either event the incidence for the imposition of toll is the passage over or for using road. bridge, ferry or the like. 7. In Blacks' Law Dictionary (5th Ed.) (1979) at p. 1334, 'toll' is defined as "a sum of money for the use of something, generally applied to the consideration which is paid for the use of a road, bridge, or the like, of a public nature, Sands v. Manistee River Imp. Co., (1887) 123 US 288. The price of the privilege of travel over that particular highway and it is a quid pro quo and rests on principle that he who receives the toll does or has done something as an equivalent to him who pays it......" 8. The word 'toll' is described in Webster,s New International Dictionary as a tax or due paid for some liberty or privilege particularly for the privilege of passing over a highway, as a road or bridge, for that of keeping a booth, vending goods, etc. in a fair market or other limited space as a manor for importing or exporting goods and compensation taken for services rendered." Toll tax is compensatory in nature, the privilege is enjoyed by the person charged and the amount realised by way of toll tax has to be utilised towards construction made or upkeep of the things like, roads, bridge, ferry, installations, etc., over which the privilege is enjoyed: see Shervani Sugar Syndicate v. Municipal Board, Ujhani, AIR 1982 All 402 . 9. In the State List of the Constitution. Entry 59 refers to 'tolls'. The corresponding provision under the Government of India Act. 1935, was contained in Entry 53 of the Provincial Legislative List. Power which followed from Entr 53, was made over to the municipal board to be exercised in a particular manner and that manner is stated in cl. vii of S. 128(1). U. P. Municipalities Act, 1916 (see Municipal Board of Hardwar v. Raghubir Singh, AIR 1966 SC 1502 at p. 1505. Explaining 'toll through' Hidayatullah, J. as he then was observed in that case that "this was a levy prescribed by towns for animals or men that went over through highways of a town or over ferries, bridges, etc. U. P. Municipalities Act, 1916 (see Municipal Board of Hardwar v. Raghubir Singh, AIR 1966 SC 1502 at p. 1505. Explaining 'toll through' Hidayatullah, J. as he then was observed in that case that "this was a levy prescribed by towns for animals or men that went over through highways of a town or over ferries, bridges, etc. belonging to it." A toll was thus a tribute or custom paid for a privilege, generally for passage over or for using a bridge, road, ferry, railway and sometimes for occupation of market, port, anchorage etc. The justification for toll was that the person charged enjoyed a privilege and the amount went towards the construction, improvement or upkeep of these things. 10. In Mahadeo Prasad v. The Tanda Municipal Board, 1959 All LJ 270 the challenge made against the bye-law framed by the Municipal Board was on the groun,i that the bye-law was ultra wires the Municipal Board because under the I P. Municipalities Act a toll on goods and not on vehicle and other conveyances, animals and laden coolies entering the municipality could be levied. This was negatived by a learned single Judge holding : "A toll tax on vehicles etc. entering the municipality has been imposed and I do not see any force in the contention that it is not a toll on vehicles etc. but is a toll on goods. Merely because there is a reference in the bye law to the nature of goods, to the liability of the importers to have the goods examined and to exemption of certain goods from the payment of toll it cannot be said that what is imposed is not a toll on vehicles but a toll on goods. What is material is that the toll must be payable on vehicles. etc. entering into the municipal limit. It is open to a Municipal Board to fix different rates of toll for vehicles, etc. containing.)or laden with different kinds of goods." 11. In Hindustan Vanaspati Manufacturing Co. Ltd. v. Municipal Board Ghaziabad, 1957 All LJ 126 at p. 130 : AIR 1957 All 155 at p. 157 it was accepted that the toll necessarily implies an idea of quid pro quo. containing.)or laden with different kinds of goods." 11. In Hindustan Vanaspati Manufacturing Co. Ltd. v. Municipal Board Ghaziabad, 1957 All LJ 126 at p. 130 : AIR 1957 All 155 at p. 157 it was accepted that the toll necessarily implies an idea of quid pro quo. The power to levy a toll is granted to the local bodies as a consideration for their rendering service, but it was observed, it does not follow that "any bye-law by which a toll has been levied on any vehicle entering into the precincts of the municipal board, laden with goods is ultra vires as not coating within the ambit of S. 128 sub-s. (vii)". The power has been given to the Board to impose a tax on any vehicle entering within the precincts of the municipal hoard as the Board has to maintain bridges and roads within its limits which are likely to be used by the vehicles entering its precincts. 12. The distinguishing feature of toll thus is that it is compensatory impost for use of or passing over a highway, bridge, ferry, installation etc. while octroi is imposed in respect of goods brought into a municipal area for consumption, use or sale. This is also dealt with separately in Entry 52 of the State List as "Taxes on the entry of goods into a local area for consumption, use or sale therein." If we bear in mind, as we must, the true incidence of toll, it become obvious that it is immaterial altogether whether the vehicle entering the Municipal limits is laden or unladen. In toll the incidence is unrelated to goods in other words, and hence it is of no consequence whether the entry is of laden coolie or laden vehicle. In both cases there is the user of or passing over the amenities provided and hence this levy of toll. 13. Smt. Dhavan next urged that toll could not be imposed since the vehicles laden with sugarcane pass through municipal limits without rest or repose. The contention is that the goods are not loaded or unloaded in municipal area and hence toll should be out of question. In taking this stand the learned counsel appears to identify 'toll' with 'terminal tax' which is entirely unjustified. Distinguishing 'terminal tax' from octroi, the Federal Court pointed out in Punjab Flour & General Mills Co. The contention is that the goods are not loaded or unloaded in municipal area and hence toll should be out of question. In taking this stand the learned counsel appears to identify 'toll' with 'terminal tax' which is entirely unjustified. Distinguishing 'terminal tax' from octroi, the Federal Court pointed out in Punjab Flour & General Mills Co. Ltd. v. Chief Officer, Corporation City of Lahore, AIR 1947 FC 14. That the terminal tax must be (a) terminal, (b) confined to goods and passengers carried by railway or Air. They must be chargeable at a rail or air terminus and be referable to services (whether of carriages or otherwise) rendered or to be rendered by some rail or air transport organisation. This was said in reference to Entry 58 in List I to the Government of India Act, 1935 which read "Terminal taxes on goods or passengers carried by railway or air; taxes on railway fares and freights". The distinction is recognised also by the Supreme Court in the Central India Spinning and Weaving and Manufacturing Co. Ltd. The Empress Mills, Nagpur v. Municipal Committee, Wardha, AIR 1958 SC 341 . Their Lordships referred to item 52 of the State List in the Constitution which reads "taxes on the entry of goods into a local area for consumption, use or sale therein" and item no.56 which reads, "taxes on goods and passengers carried by road or on inland waterways" and observed at page 348: "The legislative history of this tax thus shows that octroi was leviable on the entry of goods in a local area when the goods were for consumption, use or sale therein. The substituted tax was terminal tax on goods imported into or exported from a local area....." 14. Terminal tax on goods imported or exported is similar in its incidence and is payable on goods, it was held, on their journey ending within the municipal limits or commencing therefrom and not where the goods were merely in transit through the municipal limits and had their terminus elsewhere. That case relates to imposition of terminal tax under S. 66(i)(a). C.P. & Berar Municipalities Act, 1922, which made provision for "a terminal tax on goods or animals imported into or exported from the limits of a Municipality". That case relates to imposition of terminal tax under S. 66(i)(a). C.P. & Berar Municipalities Act, 1922, which made provision for "a terminal tax on goods or animals imported into or exported from the limits of a Municipality". In relation thus to terminal tax, the Supreme Court laid that it is payable on goods on their journey ending within the municipal limits or commencing therefrom and not where the goods were merely in transit through the municipal limits and had their terminus elsewhere. The nature of octroi and terminal taxes was further clarified in "Burmah Shell Oil Storage and Distributing Co., India Ltd. A.I.R. 1963 S.C. 906)(supra). The Supreme Court observed that Octroi and terminal taxes, though different, resembled each other in that they were leviable in respect of goods brought into a local area while terminal taxes were leviable on goods "imported or exported from the municipal limits, denoting thereby that they were connected with the traffic of goods, octrois were leviable in respect of goods brought into a municipal area for consumption or use (see Servai: Constitutional Law of India, Vol.2 (1976) p. 1275). The decision in the Central India Spinning, Weaving and Manufacturing Co.. Ltd. case, t A.I.R. 1958 S.C. 341) (supra) was cited with approval in the Town Municipal Council v. Urmilla Kothari, AIR 1977 SC 873 . In that case the question raised was regarding the interpretation of S. 124(1), Karnatraka Municipalities Act, 1964, referring to "any article or animal brought into the Municipal limits for the purpose of immediate exportation". Their Lordships affirmed that the expression 'brought into' and 'immediate exportation' do not comprehend within their sweep the continuous process of transit of goods, by vehicles which merely used the State highway passing through the areas which lie within the municipal limits. The words 'brought into the municipal limits for the purposes of immediate exportation' imply the important elements of repose and rest. It was therefore, held that as the continuity or the continuous process of the carriage of iron are as not in any way broken within the municipal limits the respondent could not be said either to, bring in or export the iron ore. It was therefore, held that as the continuity or the continuous process of the carriage of iron are as not in any way broken within the municipal limits the respondent could not be said either to, bring in or export the iron ore. The decisions, therefore, in Central India Spinning Weaving & Manufacturing Co, Ltd (A.I.R. 1958 S.C. 341) and Town Municipal Council v. Urmilla Kothari, AIR 1977 SC 873 (supra) upon which the petitioner's learned counsel strongly relied are of no avail in relation to the imposition of toll under S. 128(l)(vii) of the U.P. Act. The elements of repose and rest are characteristic of terminal tax. It is wrong to import that concept in dealing with toll. The words such as "brought into" or "immediate exportation" are foreign to cl. (vii) that pertains to toll and are instead peculiar to terminal tax dealt with under cl. (xiii) of S. 128(i). 15. The question regarding the true nature and content of toll came up for consideration upon similar facts recently in the case of Sherwani Sugar Syndicate Ltd. Allahabad v. Municipal Board, Ujhani, AIR 1982 All 402 (supra). Vehicles carrying sugarcane from the purchasing centres to the petitioner's sugar factory passed through the limits of the Municipal Boards. A Division Bench of this court held that toll tax is compensatory in nature and further that the words "entering the municipality used in S. 128(1)(vii), U.P. Act do not have the same implication as the words 'brought into the municipal limits'. We are in respectful agreement with this view. In the case before us the challenge to the imposition is not based on the grounds that there is no service rendered as consideration to the petitioner. 16. For the reasons aforesaid, the imposition of toll in the present case is not rendered illegal, in our opinion, on account of the tax being on laden vehicles entering the municipal limits or due to the absence of an element of repose or rest in this imposition. 17. The position in this behalf has, however, undergone a material change with effect from June 6, 1979 due to legislative amendment. Clause (vii) of S. 128(1) has been amended by the U.P. Urban Local Self Government Laws (Second Amendment) Act, 1979. 17. The position in this behalf has, however, undergone a material change with effect from June 6, 1979 due to legislative amendment. Clause (vii) of S. 128(1) has been amended by the U.P. Urban Local Self Government Laws (Second Amendment) Act, 1979. Clause (viii)now reads as under : "a toll on vehicles and other conveyances, animals and coolies laden with goods other than household goods of passengers, which enter the limits of the municipality and unload such laden goods or any part thereof within such limits." 18. The purpose behind the amendment, as also noticed in the case of Shervani Sugar Syndicate Ltd. (A.I.R. 1982 A1l.402) is set out in the Statement of Objects and Reasons in the following words (at p. 406) : "The imposition of toll by the various local bodies of the State affected the operational efficiency of the transports of goods by road and caused them much inconvenience and loss of their valuable time due to stoppage of trucks at numerous octroi posts and toll barriers. The State Government has, therefore, decided to abolish toll and octroi levied for the Notified Areas and Town Areas altogether and also the toll levied in the municipalities on vehicles which merely pass through them without unloading any goods." 19. In view of the amendment introduced in cl. (vii) of S. 128(1) which came into force on June 6, 1979 toll cannot now be levied on vehicles and other conveyances which enter the municipal limits in the course of their journey to a point situate outside these limits and do not unload laden goods or any part thereof within the municipal limits. In respect of the period preceding 6th June 1979 the position remains unaltered. 20. The petitioner's learned, counsel referred then also to the petitioner's claim of recovery of Rs. 49,700/- realised as toll. This entire amount pertains to the period preceding March 11, 1977 as stated in the petition. No question of refund arises in view of our finding that the imposition of toll prior to June 6, 1979 upon the petitioner was not illegal. Even otherwise whether repayment should be ordered in the exercise of discretion in a proceeding under Article 226 of the Constitution depends in each case on its own facts and circumstances (see State of M.P. v. Bhika Bhai, AIR 1976 SC 1006, Dhanyalakshmi Rice Mills v. Commr. Even otherwise whether repayment should be ordered in the exercise of discretion in a proceeding under Article 226 of the Constitution depends in each case on its own facts and circumstances (see State of M.P. v. Bhika Bhai, AIR 1976 SC 1006, Dhanyalakshmi Rice Mills v. Commr. of Civil Supplies, AIR 1976 SC 2243 . The petitioner does not even allege in this case that the amount for which repayment is claimed was paid under a mistake of law. The petition does not disclose the circumstances in which the mistake of law, if any, occurred. It is not shown either that the payment was under duress or the like. The petitioner has not given the break up of the amount denoting thereby precisely the period to which the various payments made by them relate. It cannot he said upon the facts placed before us as to what part of this amount will have been within the limitation under the ordinary, law in case a suit was to be filed in the civil court on March 1977 when this petition under Article 226 of the Constitution was moved. Consequently, the petitioner has no case, in our view, for repayment of the amount in this proceeding. 21. In the result, the petition succeeds and is allowed in part only. The respondent Municipal Board is directed to refrain and forbear from realising any toll on trucks or any other vehicles carrying sugarcane from the purchasing centres to the petitioner's factory while passing through the limits of the Municipal Board. The rest of the petition is dismissed. There shall be no order as to costs.